Citation Nr: 0934502
Decision Date: 09/15/09 Archive Date: 09/23/09
DOCKET NO. 07-38 004A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Montgomery,
Alabama
THE ISSUE
Whether new and material evidence has been presented to
reopen a claim of entitlement to service connection for an
acquired psychiatric disability, to include posttraumatic
stress disorder (PTSD).
REPRESENTATION
Veteran represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Veteran
ATTORNEY FOR THE BOARD
N. L. Northcutt, Associate Counsel
INTRODUCTION
The Veteran served on active duty from January 1970 to
December 1971.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a November 2006 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
St. Petersburg, Florida. Jurisdiction has since been
returned to the RO in Montgomery, Alabama.
The Veteran presented testimony at a hearing before the
undersigned Veterans Law Judge in March 2009. A transcript
of those proceedings has been associated with the Veteran's
claims file.
The Board has determined that new and material evidence
sufficient to reopen the Veteran's psychiatric disability
claim has been received. Accordingly, this issue is being
REMANDED to the RO via the Appeals Management Center (AMC),
in Washington, DC for further development before
readjudicating the claim on the underlying merits. VA will
notify the Veteran if further action is required.
FINDINGS OF FACT
1. In a May 2004 decision, the RO denied service connection
for an acquired psychiatric disability, then referred to as
PTSD, because of the absence of a diagnosis of PTSD in the
medical record, and following receipt of notification of that
determination, the Veteran did not perfect an appeal of the
denial, and the decision became final.
2. The evidence received since the RO's May 2004 denial of
service connection for an acquired psychiatric disability,
then referred to as PTSD, includes a diagnosis of PTSD.
CONCLUSION OF LAW
New and material evidence has been submitted, and the
Veteran's claim of entitlement to service connection for a
psychiatric disability, to include PTSD, is reopened. 38
U.S.C.A. § 5108 (West 2002 & Supp. 2008); 38 C.F.R. § 3.156
(2008).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Duties to Notify and Assist
Under applicable criteria, VA has certain notice and
assistance obligations to claimants. See 38 U.S.C.A.
§§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a),
3.159, 3.326(a). As to reopening the Veteran's claim for
entitlement to service connection for an acquired psychiatric
disability, to include PTSD, the Board is granting the
benefit sought on appeal. Accordingly, assuming, without
deciding, that any error was committed with respect to either
the duty to notify or the duty to assist, such error was
harmless and will not be further considered.
II. New and Material Evidence
The Veteran's claim of entitlement to service connection for
an acquired psychiatric disability, referred to as PTSD, was
denied by a May 2004 rating decision. See Clemons v.
Shinseki, No. 07-558 (Vet. App. Feb. 17, 2009) (holding that
although a Veteran may only identify PTSD, the Veteran's
claim "cannot be limited only to that diagnosis, but must
rather be considered a claim for any mental disability that
may be reasonably encompassed"). The Veteran failed to
appeal, and his claim became final. 38 C.F.R. § 20.1103.
However, a previously denied claim may be reopened by the
submission of new and material evidence. 38 U.S.C.A. § 5108;
38 C.F.R. § 3.156.
New evidence is defined as evidence not previously submitted
to agency decision-makers. Material evidence means existing
evidence that, by itself or when considered with previous
evidence of record, relates to an unestablished fact
necessary to substantiate the claim. New and material
evidence can be neither cumulative nor redundant of the
evidence of record at the time of the last prior final denial
of the claim sought to be reopened and must raise a
reasonable possibility of substantiating the claim. 38
C.F.R. § 3.156(a).
The RO denied the Veteran's earlier claim on the basis that
the Veteran was not affirmatively diagnosed with PTSD. That
has since occurred, and as this relates to the reason that
his claim was originally denied, it is new and material, as
contemplated by the pertinent law and regulations, and serves
as a basis to reopen the Veteran's claim. See 38 U.S.C.A. §
5108; 38 C.F.R. § 3.156(a) (2008).
ORDER
New and material evidence having been presented, the
Veteran's claim is reopened, and to this extent the appeal is
granted.
REMAND
As referenced above, the Veteran's medical records reflect a
diagnosis of PTSD. He now emphasizes that the stressful
event that caused this disorder was his discovery of the body
of a fellow member of his unit, who had committed suicide by
hanging, in May 1971. The Board notes that the date provided
by the Veteran at his Board hearing, May 1971, is consistent
with the dates of the Veteran's Vietnam service, as reflected
in his service personnel records, and previous attempts to
corroborate this event used a May 1970 date, (prior to the
Veteran's Vietnam service, although the date he initially
provided) In any event, research should be conducted in an
attempt to corroborate this reported service-related PTSD
stressor.
Additionally, the Board notes that the Veteran has also been
diagnosed with major depressive disorder and a provisional
delusional disorder, somatic type. Pursuant to Clemons v.
Shinseki, referenced supra, the Veteran's PTSD claim
encompasses claims for service connection for other acquired
psychiatric disabilities. However, the Veteran's service
treatment records are not currently associated with his
claims file, and a review of the record does not reflect that
the RO has previously attempted to obtain them. Accordingly,
attempts to obtain these records should be made and
documented in the Veteran's claims file.
Finally, after completion of this development, the Veteran
should be scheduled for an appropriate VA examination to
determine the nature and etiology of any acquired psychiatric
disabilities, including their relationship to service.
Accordingly, the case is REMANDED for the following action:
1. The AMC should obtain the Veteran's VA
treatment records from June 2006 to the
present.
2. The AMC should attempt to obtain the
Veteran's service treatment records and
document such attempts in the Veteran's
claims file.
3. The AMC should contact the appropriate
entity and attempt to obtain any records
(operational reports-lessons learned or
similar document) that narrates the
activities of HHC US Army Support Command,
Saigon, between December 1970 and December
1971, and in particular whether it was in
the vicinity of incoming hostile fire
during the Veteran's service during that
period, and whether a member of it (Robert
Washington) committed suicide by hanging
between April and June 1971.
4. Thereafter, the Veteran should be
scheduled for a VA psychiatric examination
to determine the nature, extent and
etiology of any current psychiatric
disability.
The claims file, including the Veteran's
service treatment records, should be made
available to the examiner in conjunction
with the examination.
The examiner is asked to express an
opinion as to whether it is at least as
likely as not, i.e., a 50 percent
probability or greater, that any diagnosed
psychiatric disorder had its onset in
service, and if a diagnosis of PTSD is
considered appropriate, the specific
stressor(s) on which that diagnosis is
based should be identified.
A complete rationale should be provided
for all opinions expressed. If the
examiner determines that a medically-sound
opinion cannot be reached, it is requested
that an explanation as to why that is so
be included.
5. Following completion of the above, the
RO should again review the record. If the
benefit sought on appeal remains denied,
the Veteran and his representative should
be furnished a supplemental statement of
the case and given the opportunity to
respond thereto. Thereafter, the case
should be returned to the Board for
further appellate consideration if
appropriate.
The Veteran has the right to submit additional evidence and
argument on the matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate
action must be handled in an expeditious manner. See 38
U.S.C.A. §§ 5109B, 7112 (West Supp. 2008).
______________________________________________
MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs